Judgment No. 4694
Decision
The complaint is dismissed.
Summary
The complainant challenges the decision confirming his fitness for work and instructing him to resume his duties.
Judgment keywords
Keywords
medical fitness; complaint dismissed
Consideration 3
Extract:
Eurocontrol submits that the complaint is irreceivable because the complainant did not comply with the requirements under Article VII, paragraph 1, of the Statute of the Tribunal to exhaust the internal means of redress available to him as an official of the Organisation. However, the Tribunal notes that, pursuant to the last sentence of Article 92(2) of the Staff Regulations, an implied decision rejecting the complainant’s internal complaint, challengeable before the Tribunal, arose on the expiry of four months from the date on which that internal complaint was lodged, namely on 10 November 2018. Therefore, on 7 February 2019, the date on which the complainant filed his complaint with the Tribunal, the internal means of redress available to him had indeed been exhausted. The complaint is therefore receivable and the objection to receivability raised by the Organisation will be dismissed.
Keywords
receivability of the complaint
Consideration 4
Extract:
The opinion of the Joint Committee for Disputes on the complainant’s internal complaint of 10 July 2018 was delivered on 29 March 2019, subsequent to the date on which he had filed his complaint with the Tribunal, and an express decision rejecting the internal complaint was taken on 9 May 2019 by the Head of the Human Resources and Services Unit, acting by delegation of power from the Director General and endorsing the unanimous recommendation of the Committee that the internal complaint was unfounded. In his rejoinder, the complainant therefore also challenges that decision.
Keywords
impugned decision
Consideration 5
Extract:
The complainant also requests an oral hearing. However, the Tribunal considers that the parties have presented sufficiently extensive and detailed submissions and documents to allow it to be properly informed of their arguments and the relevant evidence. The request for an oral hearing is therefore dismissed.
Keywords
oral proceedings
Consideration 8
Extract:
[T]he submissions show that no internal complaint challenging this implied or express decision to refuse to regard him as eligible for the arrangements for part-time work on medical grounds was ever made by the complainant at the relevant time, and therefore he did not exhaust the relevant internal means of redress, thus contravening the requirements of Article VII, paragraph 1, of the Statute of the Tribunal.
Keywords
receivability of the complaint; failure to exhaust internal remedies
Consideration 9
Extract:
[T]he material damages claimed by the complainant represent the difference between the partial remuneration that he received and that which he would have received if his remuneration had not been reduced. However, no compensation claim of this sort was made in his internal complaint of 10 July 2018 or addressed in the subsequent opinion of the Joint Committee for Disputes of 29 March 2019 or in the impugned decision of 9 May 2019.
It follows that this further claim is also irreceivable, since it was never raised in the context of the complainant’s internal appeal procedures, in addition to being unfounded, since the complainant was paid 50 per cent of his remuneration precisely as he himself had requested (see, by way of a comparable precedent, Judgment 4547, consideration 11).
Reference(s)
ILOAT Judgment(s): 4547
Keywords
new claim
Consideration 11
Extract:
In Judgment 4580, consideration 19, the Tribunal recalled that, when decisions have been taken on the basis of expert evidence, it is not the Tribunal’s role to substitute its assessment for that of an expert, unless that assessment is affected by a blatant error (see also Judgments 4464, consideration 7, 4277, consideration 20, and 4278, consideration 16). However, far from establishing the existence of a blatant error, the arguments set up by the complainant against the Organisation’s medical evidence amount instead to a request for the Tribunal to substitute its assessment for that of the Organisation in relation to a medical matter.
Reference(s)
ILOAT Judgment(s): 4277, 4278, 4464, 4580
Keywords
expert inquiry; medical opinion; role of the tribunal
Consideration 13
Extract:
[I]n relation to the unreasonable delay in dealing with his internal complaint, to which the complainant refers in his rejoinder, given that the internal complaint was dated 10 July 2018, the opinion of the Joint Committee for Disputes was dated 29 March 2019 and the Organisation’s express decision rejecting the internal complaint was dated 9 May 2019, the Tribunal does not consider it appropriate to award the complainant any compensation under this head. Even though it is true that the period that elapsed between the date on which the internal complaint was lodged and the date of the express decision rejecting that complaint exceeded the period provided for in Article 92(2) of the Staff Regulations, the Tribunal considers that the delay in question cannot be regarded as unreasonable in the circumstances of the case. What is more, the complainant has adduced no evidence of any injury that could result from this delay.
Keywords
moral injury; time limit; delay in internal procedure
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